263 Mo. 294 | Mo. | 1915
Upon an information charging him with the crime, under section 4A79, Revised Statutes 1909, of defiling a female under the age of eighteen years, who had been confided to his care and protection, defendant was tried, in the circuit court of Clark county, Missouri, found guilty, and his punishment assessed at five years in the penitentiary. Defendant duly perfected an appeal.
The evidence on the part of the State tends to establish the following facts: Prior to August, 1910, the prosecutrix was an inmate of the Missouri Baptist Orphan’s Home, situated near St. Louis, Missouri. On' said date said Missouri Baptist Orphan’s Home, by its deed, apprenticed prosecutrix to the care and custody of the defendant. Prosecutrix testified that she was seventeen years old on the 5th day of December, 1912. She continued to live at the home of defendant from August, 1910, until the latter part of March, 1913. She testified that a part of her duties at defendant’s "home was to assist in milking the cows in the barn; that defendant first made indecent proposals to her in the summer of 1911 and that in September, 1911, while at the barn, where.she had gone to do the milking, she first submitted to him, and at that time defendant had sexual intercourse with her; that she and defendant engaged in other acts of sexual intercourse (the frequency of which is not given) between that time and January, 1913. On January 7, 1913, she gave birth to a child. Defendant had not kept company with any man during the time she lived at defendant’s home. Defendant told prosecutrix that if any one should ask her about her condition and who was the cause of it, she should tell them that a “stranger” was responsible for it. On the night of the birth of the child, defendant called at a neighbor’s home and requested the neighbor’s wife to accompany him home to attend prosecutrix in her sickness. At the neighbor’s home, defendant told his neighbor that the prosecutrix was
After the birth of the child, prosecutrix remained at the home of defendant until March 27, 1913, and during this time stated that a stranger was the cause of her downfall. After she left defendant’s home she changed her statement, and, on April 23, 1913, she, in company with others, called at the office of the prosecuting attorney and this prosecution was begun. She stated that she left defendant’s home because defendant attempted to induce her to again submit to acts of sexual intercourse.
The only testimony offered on behalf of the defendant was his own testimony in which he denied that he had ever had sexual intercourse with the girl.
Since it has been repeatedly held under this statute that unchaste character upon the part of the ward would not constitute a defense (State v. Nibarger, 255 Mo. 289), it is no doubt true that each act of sexual intercourse constituted a separate offense under the statute.
It must be borne in mind that the State has the right of election. It is the defendant’s privilege in a proper case to compel the exercise of such right of election by interposing a motion to that end. If the court overrules the motion an exception may be saved and the action of the court reviewed upon appeal. If the motion is sustained and the election made, the court should by its instructions limit the jury’s consideration to the elected offense. However, in a case presenting a proper occasion for an election, as to which specific offense, among the many disclosed by the evidence, shall be submitted, but where, as here, defendant fails to exercise his privilege of demanding such an election, is the court to be convicted of error because it fails to limit the jury’s consideration to that specific offense which the State may have selected if the defendant had set in motion the machinery which would have reduced the submitted case to one offense? We think not. The court should not be convicted of error in submitting the case in the condition in which the defendant was content to leave it. Under the present circumstances, if defendant entertained the fear that the unrestricted submission of the case to the jury would likely result in a verdict having its foundation in part upon one offense and in part upon another (a fear which, under the evidence in the present -case, we are strongly inclined to believe would be moré fanciful than real), he should have moved, in conformity with the proper practice, to require an election and thereby reduce the case to a specific offense so that the court could have submitted that offense to the jury. Failing therefore to pursue the proper practice by exercising this privilege, he must be considered as having waived the same and is in no position to complain
" State of Missouri, Plaintiff, v. Joseph Hamilton, Defendant.
“Now at this day comes the plaintiff by J. H. Talbott, Prosecuting.Attorney, and the defendant, Joseph Hamilton, in his own proper person and by his attorneys O. T. Llewellyn and Bert L. Gridley, and the defendant being asked by the court if he had anything to say why sentence should not be pronounced and judgment rendered against him according to law, upon the verdict of the jury in this behalf, stood mute.
“Whereupon it is considered and adjudged by court that you be imprisoned in the penitentiary of the State at hard labor for a term of five (5) years, and that he pay the costs of this prosecution taxed ............Dollars, and that he stand committed to the custody of the sheriff until he be legally discharged by due process of law.”
The foregoing opinion of Williams, C., is adopted as the opinion of the court.